Twitter and the First Amendment




300 million people use Twitter and even those in the U. S. who don't use it hear about Twitter every day.  Maybe you use Twitter, as do friends, athletes, entertainers, public figures, and the President of the United States. 

One feature of Twitter is that you can block people, that is, you can prevent, for whatever reason, another Twitter user from seeing your tweets, commenting on your tweets, view your followers (those who follow you) or the accounts you follow, or use the Twitter platform for searching for your tweets, and you as the blocking user won't see any tweets by the user you blocked.  

Now if you block me, no one would argue that your blocking me rises to the level of a violation of any law or the Constitution: you're free to follow or not follow any user and block any user.  You have not violated my free speech rights by blocking me.  But what if you are the President?  What if your account, rather than being a private forum, is a public forum?  If you as the President block me, is that a violation of the First Amendment, and if so how?

Recently, the Knight First Amendment Institute at Columbia University filed suit against President Trump, Sean Spicer, and Daniel Scavino alleging just that.  You can read the complaint here (which is also a great intro to Twitter and how it works).  The Knight Center, on behalf of itself and six named plaintiffs, claims that by blocking people from his Twitter account (or having Spicer (before his resignation) and Scavino block people as they have the authorization to do) Trump and the other defendants violated the First Amendment because the blocking "imposes a viewpoint-based restriction on the individual Plaintiffs' participation in a public forum". Complaint at ¶79.  Moreover, blocking the individual plaintiffs "imposes a viewpoint-based restriction on the individual Plaintiffs' access to official statements the President otherwise makes available to the general public", Complaint at ¶80, and it "imposes a viewpoint-based restriction on the individual Plaintiffs' ability to petition the government for redress of grievances", Complaint at ¶81.  And blocking the individual plaintiffs "imposes a viewpoint-based restriction on the Knight Center's right to hear".  Complaint at ¶82.  The complaint asks the court to declare the viewpoint-based blocking unconstitutional and order that the plaintiffs be unblocked and that they and all others will not be blocked in the future. 

There are three issues here:  is it viewpoint-based blocking?; is the President's account is a public forum?; and is the Knight Center and the plaintiffs sufficiently harmed so as to have standing?  The answer to all three is "Yes".  

First, as set out in the complaint, the individual plaintiffs were blocked after they made critical remarks on Trump's Twitter account page.  This is classic viewpoint-based action in violation of the First Amendment. "[A]bove all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter or its content."  Police Dept. of Chicago v. Moseley, 408 U.S. 92 (1972). And you can't think of speech more worthy of First Amendment protection, speech that seeks to engage, critique, and persuade the government, specifically the President.  This is why viewpoint-based regulation of speech is presumptively invalid. 

Skipping to the plaintiffs' harm, there is no doubt that the individual plaintiffs had their speech restricted.  They cannot see, comment on, or see others comments on the President's tweets, or engage in the give and take of the comment stream on them.  It restricts their participation in a public forum, restricts their access to the official statements that others have access to, and restricts their right to petition the government.  (The Knight Center's claim is a little more of a stretch--their "right to hear"-- but is not at all frivolous, pointing out that the exclusion of the individual plaintiffs' points of view "distort[s] the expressive forum in which the Knight Institute and other non-blocked users participate".  Complaint at ¶77.

And it is a public forum.  Why the President's and not yours?  They look and seem to function the same on Twitter.  Well, as they say, content is king; context is queen.  And here you get both.  The President's tweets provide everything from his legislative agenda to appointments to the government to announcements of state visits and his trips abroad and his opinions on all of it (and more).  The administration has specifically said that statements made on his twitter account are official statements of the President, Trump going so far as to say "My use of social media is...MODERN DAY PRESIDENTIAL".  Complaint at ¶39, quoting a tweet from July 2, 2017.  That's the content.  The context is that people as varied as the federal courts (Hawai'i v. Trump, 859 F.3d 741, 773 n.14 (the travel ban cases)), the National Archives (advising the White House that the tweets are official records and must be preserved) to the Foreign Minister of Qatar (responding to Trump's tweets about suspension of economic relations) treat it as a public forum with public statements about public business. In short, Trump's Twitter account is "a kind of digital town hall".  Complaint at ¶45.

I will be interested in the defendants' response.  My suspicion is that they will argue that plaintiffs have many ways to see the President's tweets and many other avenues other than Twitter to comment on them, join the conversation, and seek redress from the government, arguing in effect there is no harm, and hence no standing.  They could also try to argue as well that blocking on Twitter is a kind of "time, place and manner" restriction, not a viewpoint-based restriction, though I don't think that would fly. 

This is, I think, a case worth watching, not only for the First Amendment issues (always interesting) and the person involved but also for the emerging case law on the intersection of the First Amendment and the internet and social media.

I'll keep you posted.








    



  

Comments

  1. Thank you, Counselor! As always, 45's own statements make the most compelling argument in favor of the plaintiffs. It is especially telling, to me at least, that the ability to block is also delegated to other government officials, an action they have discretion to exercise in furtherance of their job duties. From my humble perch, I would think that a summary judgment disposition could be in the cards. Would be interested in your thoughts on that. [Patti D.]

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    Replies
    1. Thanks, Patti! I think the ability of other government officials to exercise the blocking function makes it all the more clear that this is a public forum, not a private one: it is on the same level as @POTUS.
      I agree that summary judgment would be the way to go; certainly that's how I would play it. You have a clear violation of the First Amendment in a situation that is textbook viewpoint-based, with facts that are (1) simple and (2) not in dispute. The only shot Trump has here (unless I'm missing something) is standing based on lack of injury in fact. While the "injury in fact" case law has had a few twists, I don't think there is too much of a hurdle for plaintiffs to jump over. Check out Lujan v. Defenders of Wildlife, 504 U.S.555 (1992) for the standard, especially "an invasion of a legally protected interest" that is concrete, particularized, and actual.

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